The limits of intuition

Posted Thu, August 4th, 2011 2:56 pm by Laurence Tribe

The following essay is by Laurence H. Tribe, the Carl M. Loeb University Professor at Harvard Law School, where he has taught constitutional law since 1968. A widely admired advocate as well as a distinguished academic and the author of 115 books and articles, Tribe has prevailed in most of the many appellate cases he has argued, including 35 in the Supreme Court. His treatise, "American Constitutional Law," is the standard work on the subject, and Chief Justice Aharon Barak of Israel called his latest book, "The Invisible Constitution," a "masterpiece." Recipient of ten honorary degrees, Tribe was recently elected to the American Philosophical Society and served in 2010 as the Obama administration's first Senior Counselor for Access to Justice. To view the SCOTUSblog symposium in its entirety, click here.

Constitutional challenges to the individual mandate of the Affordable Care Act ("ACA") often proceed from an intuition that this law is somehow unique, that it represents a dangerous departure from constitutionally specified limits on federal power forged in the crucible of the Philadelphia Convention, and that even in an age of big government its intervention into our lives and liberty is qualitatively different from anything else witnessed in our national history. But as Judge Jeffrey Sutton concisely put the point in his careful and exhaustive concurring opinion upholding the Act in Thomas More Law Center v. Obama, "[s]ometimes an intuition is just an intuition."

Even when displayed in their best light, none of the constitutional arguments against the individual mandate "“ including objections rooted in the mandate's alleged failure to respect the vaunted activity/inactivity distinction "“ can survive rigorous analysis. What those arguments leave in their wake is a deeply felt but constitutionally ungrounded view that the mandate, and the law of which it is a part, are misguided as a matter of national policy. Even if that view were correct, the attempt to couch objections to this law in constitutional garb would remain unsustainable. This is a policy emperor who wears no constitutional clothes.

At heart, the anti-ACA intuition is not "“ as some commentators suggest "“ linked to a particular vision of federalism. Rather, it flows primarily from libertarian principles concerning each individual's right to be free from unwanted governmental intrusion into personal choices "“ such as the right to refuse unwanted medical treatment. But such principles cannot be convincingly extended from a deeply rooted right to refuse invasive medical procedures, or any other well-established right of personal choice, to an imagined right to opt out of a mandatory insurance scheme that covers payment for medical treatment. Federalism's epiphenomenal character here is revealed by the fact that such libertarian concerns would apply no less to state mandates of the kind enacted by Massachusetts than they would to any federal mandate.

Nevertheless, even though most objectors seem more concerned with the impact of the mandate on individual freedom than with its provenance within our federal system, the constitutional argument almost always takes the form of a dispute over powers delegated (and denied) to the federal government "“ no doubt because it would be insurmountably difficult to develop a purely "liberty"-based argument in support of a right to take a free ride on the nation's health insurance system. The unease about government power that drives challenges to the individual mandate thus manifests itself awkwardly in a language of federalism that obscures its true nature. Nevertheless, it is in those essentially federalist terms that the constitutional battle will be joined.

Analyzed in those terms, ACA's individual mandate is constitutional under three individually sufficient sources of federal authority: The Commerce Clause, the Necessary and Proper Clause, and the Taxing Power. I will discuss each in turn.

Commerce Clause:

Congress's broad authority to regulate the economy has been a fixture of American life since the New Deal, when the Supreme Court finally bowed to political and economic reality by abandoning its failed effort to impose strict and often highly formalistic judicial limits on congressional authority under the Commerce Clause. Since then, the Court has consistently held that Congress enjoys broad constitutional power to regulate commerce having any significant interstate component or effect, including wholly intrastate economic activity by individuals that creates substantial effects on interstate markets. In the landmark case of Wickard v. Filburn, for example, the Court upheld the power of Congress to regulate how much wheat a farmer produces on his own farm, even for personal use, because widespread individual consumption of home-grown crop would reduce demand and thus undercut national regulation of the wheat market. Similarly, to effectuate broad federal drug regulations, the Court held in Gonzales v. Raich that Congress may criminalize the cultivation of marijuana on private property for exclusively personal use.

More recent precedent confirms the breadth of federal power over individual economic choices. Although the Court struck down the Gun Free School Zones Act in 1995 and part of the Violence Against Women Act in 2000 as impermissible attempts to invoke the Commerce Clause, its reasoning in those decisions struck only at non-economic individual activity. In contrast, the ACA deals with the quintessentially economic activity of choosing how to finance one's inevitable participation in the market for health care.

Because life is unpredictable, choices to self-insure may lead to situations in which the health care one consumes is unaffordable when most desperately needed. If this happens, the costs of unpaid medical bills are typically imposed upon the public fisc. In aggregate, such individual choices to avoid purchasing health insurance that one could afford "“ and thus to increase the risk that one will eventually become a free-rider on publicly funded medicine "“ result in thoroughly documented multi-billion-dollar economic effects on the national health care market. These consequences, moreover, are beyond the competence of any single state to address "“ and thus create precisely the sort of inescapably national problem that the Framers contemplated when they drafted a "Commerce Clause" to authorize the national government to regulate where the several states cannot.

The principal objection to this view invokes an "activity/inactivity" distinction to classify self-insurance as a form of "inaction" that Congress cannot reach. Not so. The insurance mandate "“ which in fact operates only as an upward adjustment in the income tax liability of individuals who are not otherwise covered by health insurance through the military or through their employers, and who can afford to purchase a qualified insurance policy because they are above a certain income threshold "“ does not penalize anything fairly characterized as "inaction." Those who opt to risk the eventual consumption of medical care for which others will ultimately pay are not, in truth, remaining "inactive" at all. Rather, they are actively shifting the costs of their medical care onto others unless they somehow arrange never to use medical care for which they are not at the time able to pay "“ which nobody can do and which nobody has a right to compel others to permit.

Indeed, in a society that refuses to stand by while someone who is uninsured bleeds to death, only a bizarre right to force others to resist coming to one's rescue, assuming one could sign a binding "Do not admit me to an ER" pledge, could suffice to protect others from having to pick up the tab for the stubbornly uninsured. And, needless to say, just as there is no right to compel others to pay for one's care, so too is there no right to compel others to turn a blind eye to one's need for care. The right to decline unwanted medical interventions, a right ensured to a limited degree by Cruzan v. Missouri, does not entail a right to exclude oneself ex ante from medical services that, when made available, are both desperately needed and urgently desired. The structures of economy and public welfare that bind us together thus render meaningless the notion of inactivity when dealing with health care. As Judge Sutton explained, "inaction is action, sometimes for better, sometimes for worse, when it comes to financial risk."

Nor does the activity/inactivity distinction withstand careful scrutiny as a principle of constitutional law. First, no such distinction can be found anywhere in the constitutional text or history or in relevant judicial precedent. Second, Congress has long required "inactive" persons to take action "” whether by penalizing ship owners in the 1790s if they failed to stock medicine for their crews, or by prohibiting decisions not to purchase grounded in secondary economic boycotts through century-old antitrust laws, or by passing a civil rights law in 1964 that requires hotels and restaurants to serve people with whom they would rather not do business, or by requiring the payment of judicially mandated child care support payments to children living in other states pursuant to the Child Support Recovery Act. Although these laws have been subjected to vigorous (and unsuccessful) challenge, no court has so much as questioned their constitutional propriety on the ground that they impermissibly reach "inactivity." Finally, as the home-use marijuana grower in Raich discovered, there is no precedent for the proposition that Congress may regulate only those people who have already entered a market. And, in any event, everyone who might one day require costly medical attention "“ which means literally everyone alive "“ is, like it or not, already a participant in the market for health care and thus is "active" in the only possibly relevant sense of that term.

Thus, even if the individual mandate could accurately be said to regulate "inactivity" "“ a view I reject "“ that would not cast a constitutional cloud over its legitimacy as a matter of text, history, or precedent. To the contrary, traditional tools of constitutional interpretation would still amply support the ACA as a legitimate enactment under the Commerce Clause.

Necessary & Proper Clause:

The Necessary & Proper Clause, which grants Congress the power to "make all Laws which shall be necessary and proper for carrying into Execution . . . all other Powers vested by this Constitution in the Government of the United States," likewise assures the individual mandate's constitutional validity.

The Supreme Court has interpreted the Necessary & Proper Clause's language broadly ever since the earliest years of the Republic, most famously in McCulloch v. Maryland and most recently in Comstock v. United States, a case in which the Roberts Court upheld the involuntary commitment of federal prisoners to psychiatric counseling even after they completed their prison sentences, reasoning that such commitment could rationally be deemed "necessary and proper" for "carrying into Execution" whichever "Powers" Congress exercised under Article I when it criminalized the activity of the prisoners subject to such commitment. It is thoroughly settled that, while performing such means-ends rationality analysis, the Court displays great deference toward Congress and employs a capacious definition of necessity that allows the political branches broad discretion to exercise their constitutional powers of implementation.

The ACA easily clears this means-ends hurdle. Its requirement that insurance companies cover patients who have preexisting medical conditions would bankrupt that industry unless enough individuals are required to purchase insurance, for otherwise many people would simply wait until they are sick before obtaining the needed insurance coverage "“ thus rapidly inflating prices, destroying insurance business models, and excluding millions more from protection. Nobody doubts that this mandatory coverage provision is constitutional under the Commerce Clause. The individual mandate is thus justified by Congress's authority to take all steps "necessary and proper" to the effectuation of powers otherwise "vested by this Constitution" in the national government, inasmuch as the individual mandate is indispensible to the regulatory system contemplated in the ACA. Congress made extensive factual findings supporting this conclusion of indispensability, so it doesn't take even the extraordinary deference dictated by McCulloch v. Maryland to sustain this exercise of Congress's power to enact the individual mandate.

Some have tried to avoid this conclusion by suggesting that the mandate is insufficiently "necessary" to the overall ACA scheme, an argument that would require a dramatic departure from precedent by abandoning all deference to congressional findings, while others seek to render the Necessary & Proper Clause a virtual nullity by insisting that "proper" ends are exclusively limited to those elsewhere specifically enumerated in the Constitution. The far more natural reading of this provision "“ supported by text and by ample precedent "“ instead recognizes it as an independent grant of implied authority to employ rational means for the achievement of constitutionally permissible ends. On that view, the Necessary & Proper Clause firmly grounds the ACA's individual mandate. Just as it did when creating Social Security, which would come undone if people were free to opt out, Congress has limited the economic choices of a few in order to effectuate a larger regulatory regime.

Finally, some complain that such an argument enables Congress to enlarge its own power by creating a regulatory program without which a contested provision would be constitutionally vulnerable. But this "bootstrapping" argument misses the mark. It is inherent in the nature of the Necessary & Proper Clause that it provides Congress with sources of authority that would not exist but for broader legislative measures that Congress might never have enacted. That was the whole point of Justice Scalia's concurring opinion in Gonzales v. Raich, in which he reasoned that it was Congress's decision to enact a comprehensive scheme to control interstate traffic in certain drugs that gave Congress the power to regulate individual, intrastate conduct involving those drugs lest the interstate scheme be rendered more difficult to enforce. And in United States v. Lopez, striking down the stand-alone federal ban on the possession of guns near schools, the Court went out of its way to suggest that a very different issue would have been presented if Congress had enacted a comprehensive scheme to control interstate traffic in guns and had included the ban on certain categories of gun possession in that larger scheme.

Thus there is no illegitimate bootstrapping involved in arguing that the contested congressional authority to impose an individual health insurance mandate may ride on the back of Congress's essentially uncontested authority to enact a comprehensive scheme of which a mandate requiring insurance companies to cover people with preexisting conditions is a vital part. This basis for upholding the ACA's mandate is independently sufficient, and embracing its ultimate conclusion does not require that one accept the Commerce Clause argument made above.

Taxing Power:

Congressional and executive skittishness about using the "T" word to describe one of the pillars of constitutional authority on which this measure rests has at times obscured the availability of the Taxing Power under both Article I and the Sixteenth Amendment as yet one more independently sufficient basis for sustaining the individual mandate. The Court has repeatedly reminded us that an otherwise valid exercise of congressional power is not rendered invalid by Congress's recital of an inappropriate clause in support of that authority "“ or even by Congress's failure to recite any clause at all. As the Court put it in Woods v. Cloyd Miller Co., "[t]he . . . constitutionality of action taken by Congress does not depend on recitals of the power which it undertakes to exercise." And of course the Executive Branch cannot doom a congressional measure's constitutionality by declining to call it what it is. Whatever one calls it, the individual mandate is manifestly an exercise of the power to "lay and collect Taxes . . . to . . . provide for the . . . general Welfare of the United States" (Article I, Section 8, Clause 1) and of the "power to lay and collect taxes on incomes" (Amendment XVI), for two basic reasons. First, and most directly, it operates as part of the statute that taxes personal income to raise revenue. Second, it functions essentially as a surtax on certain income-eligible taxpayers whose conduct imposes costs on other citizens and on the Treasury "“ and is structured not simply as a regulatory measure designed to penalize some choices or activities while encouraging others, but as a revenue-generating device to replenish the federal Treasury vis-Ã -vis those whose decisions to let others bail them out when medical bills come due would otherwise deplete the Treasury to a measurable degree.

These constitutional provisions "“ the Commerce Clause, the Necessary & Proper Clause, and the Taxing Power "“ all support the constitutionality of the individual mandate.

* * * * *

The importance of a Supreme Court decision upholding the ACA's individual mandate cannot be overestimated. Whereas interpreting the Constitution to support this exercise of congressional power would unleash no novel cascade of untoward consequences in light of the ample precedent for such a ruling, interpreting the Constitution to deprive Congress of the power to enact this mandate would have harmful consequences both for congressional authority over an increasingly interdependent economy and for constitutional interpretation as an intellectually coherent undertaking.

The activity/inactivity distinction that would almost certainly drive such an interpretation superficially presents itself as a "good for one ride only" ticket to judicial review and seems almost tailor-made for the individual mandate. This is an illusion. If the Court were to set about the task of defining limits on federal regulatory power through an "activity" vs. "inactivity" distinction, the mischief its doctrine would wreak throughout American life and law is hard to predict "“ both because the distinction itself is conceptually untenable, and because other areas of law might become destabilized as a result (one need only reflect on child support mandates and mandatory sex offender registration). The Court will hopefully heed the lessons of its past, when decades of effort spent judicially limiting federal regulatory power collapsed into doctrinal incoherence and political reprisal in the 1930s, and should be wary of invitations to plunge into the "economic thicket" at a time when the need for robust federal regulatory authority in a fast-evolving and interconnected economy has never been greater.

I have elsewhere speculated that, when the Court addresses this issue on the merits, the vote need not and probably will not come down to the predictable five-four ideological division. I continue to believe that was not mere wishful thinking. Despite its inescapably political and cultural dimensions, constitutional law, I remain convinced, is more than ordinary politics by another name. At the very least, broader concerns about the Court's institutional role, doctrinal ripple effects, stability and continuity in constitutional rules, and deeply ingrained traditions of employing a reasonably well-defined set of interpretive techniques all set judicial decisionmaking apart from mere policy preferences "“ and all point toward a decision upholding congressional power to enact the individual mandate.

As President Obama once wrote and as I have long believed, a core function of our Constitution is to "force us into a conversation" connecting our traditional commitments to our future "“ a conversation in which it is only healthy for radically different views, both about what that future should be and what our traditions mean, to be vigorously debated. But at least some constitutional debates are stacked by logic in favor of one side over the other. The mental gymnastics that would be required to find the individual mandate unconstitutional despite the guidance of text, history, and precedent would be extraordinary. Even while taking with utmost seriousness the objections of those who in all good faith view this measure as beyond congressional power either on federalism grounds or on libertarian grounds or on some mix of both, devising a credible constitutional argument that would sustain their position without completely upending our constitutional order is a challenge beyond my capacity to surmount.

Upcoming Oral Arguments

3/31Kimble v. Marvel Enterprises, Inc. Whether the Court should overrule Brulotte v. Thys Co., which held that “a patentee’s use of a royalty agreement that projects beyond the expiration date of the patent is unlawful per se”.

4/20Johnson v. United States Whether possession of a short-barreled shotgun is a violent felony, leading to a longer prison term as a career criminal.

4/21McFadden v. United States A federal prosecutor’s duty to prove that a suspect knew that a substance was an illegal substitute for a banned drug.

4/22Horne v. Department of Agriculture The federal government’s duty to pay raisin growers for an order requiring removal of part of a year’s crop from the market to stabilize prices.

On Monday afternoon Justices Anthony Kennedy and Stephen Breyer testified before the House Appropriations Committee. The purpose of the hearing was to discuss the Court’s budget for the next fiscal year and the federal judiciary, but the legislators also took full advantage of the occasion to touch on other topics as well.